The advent of e-discovery over the past several years has revolutionised the knowledge base necessary to succeed in modern litigation practice. Of course, while the fundamental principles of discovery and trial practice have remained the same, e-discovery has brought some tremendous changes to the legal industry. In the US, the amended Federal Rules of Civil Procedure, for one, have transformed the adversarial nature of discovery into an atmosphere of cooperation and collaboration in ways never imagined. The rules, the Committee Notes and the resulting case law have altered the way corporations prepare for litigation, generate and store records, and communicate internally. E-discovery has also created an entirely new interdisciplinary language, has brought together lawyers, records managers and technologists to assist in the understanding of the intersection between law and technology, and it has ushered in an era of rapid technological advances in information storage, retrieval and review. But how should it be approached?
Traditional information-technology architecture was not designed to track documents or index material by content, and knowing everywhere data resides in an organisation may be challenging. A comprehensive information-management plan should set forth a document classification scheme and a mandatory retention schedule, and also should contain a detailed description of where a company keeps its information. This description, commonly referred to as a data map, should encompass all servers hosting the company’s applications and stored information, and also should include those servers managed by third-party vendors. Data mapping can help a company appreciate where information – relevant to different types of litigation – is located so that discovery efforts can be more carefully targeted towards pre-identified data stores. Data mapping also reduces a company’s risk for sanctions due to the non-production or late production of relevant data. Like the records’ retention policy, the mapping of data sources can also help identify quick retrieval strategies and cost-consuming data pools that may need to be revised.
Putting the system in place
When litigation, including government and internal investigations, is reasonably anticipated, pending or threatened against a party, that party must preserve – or ‘hold’ – all information potentially relevant to the action. In order to be in a strong position to do this, a records’ retention or information-management policy needs to be in place already. To be successful, such a policy should be: rigorously enforced IT department, records management department and legal department; easy to understand; periodically updated; and formally audited on a regular basis.
Special care must also be taken to ensure that data, including metadata, is not inadvertently manipulated or altered during the data collection, that the data-collection efforts are properly documented, that evidence is handled in accordance with the standard rules of evidence, and that data-collection personnel are prepared to testify as to the actions taken during the process. A reputable data-collection provider will have the appropriate knowledge, experience and safeguards in place to ensure that all data is collected to avoid spoliation of evidence, which can lead to both evidentiary issues and possible sanctions.
Virginia P Henschel is vice president, E-discovery Affairs, at Applied Discovery. To receive further information on e-discovery best practice, download The Discovery Book from here.
Applied Discovery and CPA Global, one of the world’s leading providers of legal services outsourcing, formed a strategic alliance in 2008 to offer clients a comprehensive document review and e-discovery service. In just two years, the alliance has jointly processed and reviewed more than 200 million pages of evidence.
This article was first published in Legal Strategy Review, issue 6